IE v Disclosure and Barring Service
| Jurisdiction | UK Non-devolved |
| Judge | Judge Jones |
| Neutral Citation | [2023] UKUT 310 (AAC) |
| Published date | 12 January 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
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IE v Disclosure and Barring Service
[2023] UKUT 310 (AAC)
IN THE UPPER TRIBUNAL Appeal No. UA-2021-001212-V
ADMINISTRATIVE APPEALS CHAMBER (formerly V/423/2021)
ON APPEAL FROM:
Appellant: IE
Respondent: Disclosure and Barring Service
DBS Ref No: DBS6191
Customer ref: 00925681485
DBS ID Number: P0002C3Z240
Between: IE Appellant
- v –
DISCLOSURE AND BARRING SERVICE Respondent
Before: Upper Tribunal Judge Jones
Tribunal Member Roger Graham
Tribunal Member Rachael Smith
Hearing date: 15 May 2023
Decision date: 14 July 2023
Representation:
Appellant: Louise Price of Counsel
Respondent: Mr Simon Lewis, Counsel instructed on behalf of the DBS
DECISION
The decision of the Upper Tribunal is to dismiss the appeal of the Appellant.
The decision of the Disclosure and Barring Service to include the Appellant’s
name in the Adults’ Barred List taken on 18 August 2020 did not involve a
IE v Disclosure and Barring Service
[2023] UKUT 310 (AAC)
Case no: UA-2021-001212-V
2
mistake on a point of law nor material mistakes in findings of fact. The decision
of the DBS is confirmed.
The Upper Tribunal further directs that there is to be no publication of any matter
or disclosure of any documents likely to lead members of the public directly or
indirectly to identify the Appellant, witnesses, complainants or any person who
has been involved in the circumstances giving rise to this appeal.
This decision and direction are given under section 4(5) of the Safeguarding
Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper
Tribunal) Rules 2008.
Introduction
1. The Appellant (IE) appeals the decision of 18 August 2020 of the Respondent (the
Disclosure and Barring Service or ‘DBS’) to include his name in the Adults’ Barred
List (“ABL”) pursuant to paragraph 9 of Schedule 3 to the Safeguarding Vulnerable
Groups Act 2006 (“the Act”).
2. Permission to appeal was granted by the Upper Tribunal Judge following an oral
hearing on 12 July 2022 in respect of four grounds raised by the Appellant in the
notice of appeal.
3. We held an oral hearing of the appeal in Field House, London on 15 May 2023.
The Appellant attended and was cross examined. He was represented by Ms
Price of counsel. The Respondent DBS was represented by Mr Lewis of counsel.
We are grateful to them both for the quality of their written and oral submissions.
The background
4. References in square brackets ([]) are references to page numbers of the hearing
bundle which we considered in full.
5. The Appellant worked, from early March 2018 as a “senior support worker”, at a
home which provided residential supported living services to people with learning
disabilities and other complex issues. It is accepted that this was regulated activity.
6. The Appellant’s duties included the provision of care to a number of service users
residing at the Home, including one particular service user (“SS”). SS had a
learning disability and bipolar affective disorder; and a history of abuse, including
sexual abuse, as a child.
7. On 03 February 2020, the Appellant was suspended ([63]) pending completion of
an investigation by his employer into alleged misconduct at work, relating to the
way the Appellant dealt with SS and, in some more limited respects, other residents
at the Home.
IE v Disclosure and Barring Service
[2023] UKUT 310 (AAC)
Case no: UA-2021-001212-V
3
8. As part of the employer’s investigation, a number of IE’s colleagues (“the
Colleagues”) produced statements and/or had discussions recorded (“the
Statements”), setting out their accounts regarding the alleged misconduct.
9. On 12 February 2020, a formal referral was made to DBS, by the Home, about the
alleged misconduct [32]. At or around the same time, the police were also notified
by the Home, of the alleged misconduct. The Home also notified the Care Quality
Commission and the local authority [35]-[37]. No other authority has taken any
action in relation to the Appellant’s suitability to work with vulnerable adults in light
of the allegations (or at all).
10. On 31 March 2020, DBS sent the Appellant a “Minded to Bar Letter” ([19]), setting
out the allegations being considered by DBS, various information relating to the
same and to the procedure being undertaken; and providing IE with the usual
opportunity to make written representations and/or provide information or evidence
to challenge DBS’s putative findings and/or to explain why he ought not to be
included in the List. It was made clear to IE that, should he wish to rely on additional
documentation from a third party, it was his responsibility to provide it.
11. It would appear that IE was interviewed by the police, in relation to the same or
similar matters, in May 2020 ([84]), after which CPS appear to have spent some
considering whether or not to bring criminal proceedings against IE.
12. On 17 July 2020, written representations were duly provided to DBS, on behalf of
IE, by his solicitor (“the Representations”) ([67-81]). Attached to the same, were a
number of other documents, including three “character references” (“the Character
References”) ([88-91]).
13. The DBS then made the barring decision on 18 August 2020 (‘the Decision’). The
Decision is to be read in conjunction with the “Barring Decision Process” document
(“the Rationale Document”) [(132]).
14. It would appear that the police/CPS, ultimately, elected not to take any further
action against IE regarding any criminal liability ([128]).
15. The Appellant’s Application and Notice of Appeal, setting out IE’s reasons for
appealing the Decision, was dated 18.11.20, having been prepared by a solicitor
on IE’s behalf ([1]). It appears to have been stamped as received by the Upper
Tribunal (‘UT’) on 15.03.21; but is understood to have been emailed to the UT on
18.11.20 by IE’s representatives.
16. The UT issued a first set of directions in respect of the appeal on 30.03.21 ([130]).
17. DBS filed and served some written submissions dated 29.05.21 ([168]).
18. IE provided some further written submissions on 26.08.21 ([211]).
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